MAGISTRATE’S COURT

Otago Daily Times, Issue 21981, 16 June 1933, Page 2

MAGISTRATE’S COURT

Thursday, June 15. (Before Mr J. R. Bartholomew, S.M.) UNDEFENDED CASES. Judgment for the plaintiff was given in the following undefended cases: —Stone, Son, and Go., Ltd., v. John Macpherson (Hastings), claim £3 12s, for advertising owing, with costs (£l 3s 6d); Stone, Son. and Co., Ltd., v. King’s Express Delivery, Company (Pctone), claim £2, subscription and cost of advertisement owing, with costs (£1 3s Cd); R. B. Denniston and Co., Ltd., v. C. Tucker, claim 12s 10d, for goods supplied, with costs (8s) ; C. and W. Hayward v. W. Ayres, claim £1 12a 6d, for goods supplied, with costs (9s); Hallenstein Bros., Ltd., v. Stuart Johnson, claim 12s, for goods supplied, with costs (9s); Andrew Lees, Ltd., v. M. Crawford, costs only (8s): C. and W. Hayward, Ltd., v. R. Constable (Auckland), claim £l3 0s 3d, amount owing under a hire-purchase agreement, with costs (£2 15s). CLAIM FOR DAMAGES.

David Stark Stewart (Mr K. A. King), an employee in the tramway worksnops, proceeded against George Goldsmith (Air G. M. Lloyd) on a claim to recover damages' amounting to £ll7 11s 4d, which the plaintiff alleged were caused through the defendant’s dog running into the motor cycle which he was riding. The statement of claim set out that on December 17 last the plaintiff was proceeding along Bradshaw street, South Dunedin, in an easterly direction on his motor cycle, when a young dog, owned by the defendant, collided with the plaintiff s motor cycle and caused the plaintiff to be thrown from his cycle to the ground. It was held that the plaintiff was travelling on the correct side of the road at a very slow rate of speed, and was keeping a proper lookout. It was claimed that it was impossible for the plaintiff, in the circumstances, to avoid a collision, as a result of which the plaintiff suffered a lacerated knee which confined him to his bed for some time, and later necessitated his removable to the Hospital. This prevented him from attending work from December 17 to May 15, and he lost wages amounting to £BB 3s 4d. Hospital expenses amounted to £24 12s. The plaintiff accordingly claimed special damages amounting to £O2 Us 4d and £25 general damages, a total of £ll7 Us 4d.—Mr King said that the defence had agreed that in the event of the plaintiff being entitled to judgment the claim for wages would be admitted and it would also be admitted that the injuries suffered by the plaintiff were received from the accident. Counsel said that the plaintiff admitted receiving n payment from his lodge of £2l, and this could be deducted from the amount claimed for wages.;—The claim was amended accordingly.—ln evidence the plaintiff said that he entered Bradshaw street on top gear and was travelling at from four to six miles an hour. The dog shot out from the footpath and struck his front wheel. The plaintiff did not see the animal until it struck the wheel. He applied the brakes and the back wheel skidded and threw him to the left, bo that the dog was caught under the step and jammed the plaintiff’s foot, preventing him from throwing the cycle out of gear.—-To Mr Lloyd, the plaintiff said that the accident happened so quickly that he could not tell whether there were any potholes in the road or not. He had not told anyone that the dog was responsible for the accident, and denied telling anyone that the happening was a pure accident or that loose metal on the road was responsible for the collision.—Lawrence George Frederick, who said he wes an eye-witness of the accident, stated that the dog had run right into the cycle.Mr Lloyd said that the case for the defence was that an independent witness who saw the movements of the dog from the footpath would say that it moved off quietly, sniffing the pavement, and just before the accident lay perfectly still on the ground. The plaintiff had to show that this four months’ old pup had rushed out in such a manner as to startle or upset the cyclist. There was nothing to suggest that this was the case, and the defence attributed the accident to the bad state of the road at the time, and to the plaintiff’s lack of control or nis cycle, due to what he was carrying on his back.—The defendant said he first saw Stewart shortly after the accident, and the plaintiff told him he attributed the accident to the state of the road. the defendant sa\v the plaintiff again five days later, and on that occasion he attached no blame to the dog. Stanley Gordon said before the accident he saw the plaintiff travelling up the centre ot Bradshaw street. He was riding very unsteadily on account of the rough state of the road. Witness saw the cycle sk’d about two yards away from the dog, and the machine finished lying across the road with the engine racing. Witness saw the dog walking slowly along the footpath, and then on to tho road, where it crouched down, as if it were frightened by the approach of the machine, and was perfectly still when it was struck by the cycle about two paces from the kerbing. When the cycle fell on its side the dog was pinned under the machine. Witness and one or two others assisted the plaintiff to extricate himself, and later the plaintiff said it was a pure accident.— John Henry Simon gave evidence of having seen the motor cyclist travelling down the road at about 12 to 15 miles an hour and swaying immediately before he fell. —Jhn MTherson Maskie said that after the accident he picked the cycle up. _ Ihe dog was then lying under the engine.— The magistrate said that the accident was an unfortunate matter for both parties, for the dog was obviously not a vicious animal, nor had it been in the habit of acting to the danger of the public. The matter of liability was dealt with by the Dog Registration Act, but on the question of facts there had been the usual confliction of evidence which one met with in this kind of case. It was inconceivable that a motor cycle travelling at a speed of 12 miles an hour or more could be brought to a sudden stop without the rider and the machine being gpreadeagled on the roadway, whereas in fact the rider had still been in a sitting position, with one foot caught, under the machine when it fell over. Had pie machine been travelling fast when it nit the dog it certainly would not have fallen and‘have remained on top of the animal, as had been stated in evidence. He held that the plaintiff was entitled to juclgmerit for the full amount claimed, with costs amounting to £ll Is.